Horace v.

Lasalle Bank National Association et al

Doc. 32

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

PHYLLIS HORACE,

)
)
Plaintiff,
)
)
v.
)
)
LaSALLE BANK NATIONAL
)
ASSOCIATION, as trustee
)
for Certificate Holders
)
of Bear Stearns Asset
)
Backed Securities I LLC,
)
Asset Backed Certificates, )
Series 2006-EC2, et al.,
)
)
Defendants.
)

CIVIL ACTION NO.

3:08cv1019-MHT
(WO)

OPINION AND ORDER

Plaintiff Phyllis Horace brought this lawsuit in
state court seeking damages arising out of an improper
loan and attempted foreclosure by defendant LaSalle Bank
National Association and other defendants.

LaSalle Bank

removed this lawsuit based on diversity-of-citizenship

jurisdiction.

28 U.S.C. 1441, 1331.

Horace now moves

for remand arguing, inter alia, that the bank has failed
to demonstrate that the $ 75,000 amount-in-controversy

Dockets.Justia.com

requirement is met in this case.

Because the court

agrees that the amount-in-controversy requirement is not

met, Horaces remand motion will be granted.

I.
LaSalle

Bank

contacted

Horace

in

October

2008

informing her that $ 300,263.63 was due on her two-year

adjustable-rate

mortgage

and

that

foreclose on her property in November.

it

intended

to

Before the bank

could foreclose, however, Horace filed this action in

state court, where she obtained a temporary-restraining
order to enjoin foreclosure until that court could hear
evidence in the case.

LaSalle Bank then removed the case

to this federal court.

Essentially, Horace alleges that LaSalle Bank engaged
in predatory lending, giving her the loan knowing she
would never be able to repay and intending to gain a
windfall

from

foreclosure.

She

therefore

brings

variety of claims against the bank, including negligent-

and

wanton-mortgage

servicing,

unjust

enrichment,

wrongful foreclosure, and breach of contract.

II.
For purposes of removal pursuant to diversity-ofcitizenship jurisdiction, where damages have not been
specified by the plaintiff, a removing defendant has the
burden of proving by a preponderance of the evidence that
the

75,000

amount-in-controversy

diversity jurisdiction is met.

requirement

for

Leonard v. Enterprise

Rent-a-Car, 279 F.3d 967, 972 (11th Cir. 2002).

The

defendant must do so by presenting documents received

from

the

plaintiff

which

contain

an

unambiguous

statement that clearly establishes federal jurisdiction.

Lowery v. Alabama Power Co., 483 F.3d 1184, 1213 n. 63
(11th Cir. 2007).

The court may not speculate in an

attempt to make up for the notices failings.

1213.

Id. at

If the jurisdictional amount is either stated

clearly on the face of the documents before the court, or

readily

deducible

jurisdiction.

from

them,

then

the

court

If not, the court must remand.

has

Id. at

1211.
Finally, Removal statutes are construed narrowly;
where plaintiff and defendant clash about jurisdiction,
uncertainties are to be resolved in favor of remand.
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.
1994).

III.
LaSalle Bank admits that the true gravamen of
Horaces complaint is the unspecified amount of damages
she seeks as a result of alleged negligence and fraud
associated with the procurement of the mortgage.
Resp. M. Rem. at 6 (doc. no. 31).
contends

that

the

75,000

Defs.

Nevertheless, the bank

amount-in-controversy

requirement is met simply because the original value of

the mortgage was $ 283,500.

The court disagrees.

Horace does not claim that there is no mortgage on

her property or that her property should be wholly free

from encumbrance; in other words, the entire value of the
mortgage is not at issue.

Rather, Horace seeks damages

for LaSalle Banks wrongful conduct in procuring the

mortgage.
The notice of removal contains very few facts. There
is

certainly

nothing

on

the

face

of

the

complaint

unambiguously stating how much Horace seeks in damages,

nor can the court readily deduce the damages simply by
looking to the value of the underlying mortgage.

Any

attempt to determine the amount in controversy based on

the notice of removal would thus require the court to
engage

the

kind

of

unguided

prohibited by Lowery.

speculation

explicitly

Therefore, this case will be

remanded to state court*

* This decision finds support in Wood v. Option One

Mortg. Corp., 580 F. Supp. 2d 1248 (N.D. Ala. 2008)
(Hopkins, J.), where the court also remanded an action
based on wrongful foreclosure and improper mortgage. In
that case, the mortgage obligation was $ 145,000, but the
court remanded, explaining that Lowery prevented the
defendant from removing the case based simply on
(continued...)
5

Finally, because the court determines that this case

should

be

remanded

for

want

of

subject-matter

jurisdiction, it is unnecessary to consider the other

arguments presented in Horaces motion to remand.
***
Accordingly, it is the ORDER, JUDGMENT, and DECREE of
the

court

that

plaintiff

Phyllis

Horaces

motion

to

remand (doc. no. 25) is granted and that, pursuant to 28

U.S.C. 1447(c), this cause is remanded to the Circuit
Court of Russell County, Alabama for want of subjectmatter jurisdiction.
The

clerk

of

the

court

is

DIRECTED

to

take

appropriate steps to effect the remand.

DONE, this the 17th day of February, 2009.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

(...continued)
plaintiffs assertion of claims for wrongful foreclosure
and improper mortgage charges and their demand for
unspecified compensatory and punitive damages. Id. at
1252.